Ka Wai Ola - Office of Hawaiian Affairs, Volume 6, Number 3, 1 March 1989 — In State Water Code [ARTICLE+ILLUSTRATION]

In State Water Code

Native Hawaiian Water Rights Need Clarification

by Deborah Lee Ward Editor, Ka Wai Ola O OHA What are "native Hawaiian water rights," and are they protected by the new state water code? Those familiar with the code say the answer to these questions is not clear, and Hawaiian water users wiil need to be careful to protect their rights, for example, by filing water use declarations. The state water code, in a section titled "Native Hawaiian Water Rights" says that "traditional and customary" water rights of native Hawaiian ahupua'a tenants are protected even if they fail to apply for or to receive a permit for water use under that chapter. However the code only gives a limited definition of Hawaiian water rights, "Such traditional and customary rights shall include but not be limited to (emphasis ours) the cultivation or propagation of taro on one's own kuleana and the gathering of hihiwai, 'opae, 'o'opu, limu, thatch, ti leaf, aho cord and medicinal plants for subsistence, cultural and religious purpx)ses." What other uses of water might also be protected is not clear. By not specifically addressing native Hawaiian water rights in the administrative rules whieh implement the code, they fail to assure protection for native Hawaiian water rights, notes Honolulu water rights attorney Elizabeth Pa Martin. Martin argues, "Since there will be intense competition in 'designated' areas, the commission is very likely to undervalue the amount of water needed to protect the eeonomie self-sufficiency of the Hawaiian eommunity since neither the code nor the administrative rules clearly spells out the rights of native Hawaiians conceming water use. " In July 1988 Martin founded a nonprofit lega/ aid service, Native Hawaiian Advisory Council, whieh provides education and legal services to Native Hawaiians at no charge or based on ability to pay. Martin is a graduate of the University of Hawaii William S. Richardson School of Law, the Univer-

sity of Portland, and Kamehameha Schools. Last year Martin applied for a grant from the Administration for Native Americans to eompile an inventory of native Hawaiian water users. While she did not receive the grant, Martin plans to resubmit her applieahon and in the meantime has begun to seek out farmers and eompile the inventory on her own. As director of the Native Hawaiian Advisory Council, she believes native Hawaiians lost a great deal during the Great Mahele because they did not understand changes in the property system, nor the eeonomie value of that elaim. She wants to see that this does not happen with Hawaiian water rights. "The biggest problem now is to know who needs help," she said. "Where are they? Unless we find them how ean we help them?" She adds, "Without a proper understanding of their rights now, Hawaiians face the possibility of losing their water rights as was the case with land and fishing rights. If you have or think you have water rights, you should act now." Martin warns, "The code will create a formalized system for the power over water, rights that will be very difficult to dislodge by means of equitable arguments made later." According to state water commission deputy director Manabu Tagomori, when the adminis-

trative rules were being developed, there was so mueh uncertainty over what native Hawaiian water rights were, that the issue was left to be resolved later, rather than hold up the rest of the rules. He said defining these rights remains a major task at hand for the water commission, and indicated they would seek input from the Office of Hawaiian Affairs in this matter. Tagomori also strongly recommended that native Hawaiians file declarations of water use to assure protection of their rights through documentation and later verification in the field by the state Division of Water and Land Development. He stressed that the real test of protecting Hawaiian water rights will eome in the process of verification in the field. For example, showing exactly where an auwai (irrigation ditch) leads to, or led to afield. This information is important for the commission to have even if the water is nor presently being used, he said. Thus, one might ask, even though the water code says native Hawaiian water rights are protected, because those rights have . never been clearly defined, are they really protected at all? The water code has its origins in the 1978 state constitutional convention. In a committee report to then ConCon president William W. Paty (now head of DLNR) on amending the state constitution concerning water resources, it found "The state has an obligation to proteCt, control and regulate the use of Hawaii's water resources for the benefit of its people." "The Legislature shall provide for a water resources agency whieh shall, in accordance with law, set overall water conservation, quality and use policies; define beneficial and reasonable uses; protect ground and surface water resources, watersheds and naturai stream environments; establish criteria for water use priorities while assuring appurtenant rights and existing correlative and riparian uses; and establish procedures for regulating all uses of Hawaii's water resources." It was to take 10 years to resolve major differences between public and private users before a water code and administrative rules were finally adopted. Tagomori says the code represents great progress in water law and resource management in Hawai'i, but admits its present form is only a start. He views it as a tool for management, but expects it to evolve as it is tested by use. He noted that in 1991-1992 there will be a fiveyear review of the code and amendments may be expected to resolve issues of: public and private rights; a statewide water use permit system (this would eliminate designated management areas); integrating water quantity (DLNR) and quality (Dept. of Health) management agencies; review of state and city water management responsibilities. Also reviewing native Hawaiian water rights is Williamson B.C. Chang, a professor at the UH law school who teaches a course in water rights. Chang was for the past 10 years heavily involved in the development of a water code in Hawai'i. In 1984 Chang was staff attorney for the advisory commission on water resources, and he helped draft the original versions of Hawaii's water code. He was special deputy attorney general representing the chief justice of the Hawai'i Supreme Court in the most significant water rights case in the history of Hawai'i, Robinson vs. Ariyoshi. Chang is now working on a two-year research project to complete a book-length manuscript on the legal history of water rights in Hawai'i. This project may be important to native Hawaiians as it will examine the manner in whieh the traditional Hawaiian eommunal system of water rights was transformed into a system where water rights are considered private property. Furthermore, Chang says his project hopes "to demonstrate that native environmental practices (concerning water use) could have evolved into mature legal doctrines." If the native Hawaiian water rights are, in due time, more fully addressed in the state water code and its regulations, they may indeed one day be "mature legal doctrines" of the State of Hawaii.

Manahu Tagomori

Elizabeth Pa Martin